In November of 2015, the Supreme Court of the United States heard arguments in Foster v. Chatman, a Georgia death penalty case where prosecutors struck all four African Americans from the jury pool. As a result, Timothy Tyrone Foster, an African American man accused of killing a white woman, was tried, convicted, and sentenced to die by an all-white jury.
Years later, Foster’s attorneys obtained the State’s notes showing prosecutors highlighted the names of black jurors, circled the word “black” on their questionnaires, and labeled them “B#1,” “B#2” and so on. On a sheet labeled “definite NOs,” prosecutors listed all of the black prospects at the top and ranked them “in case it comes down to having to pick one of the black jurors.” All of this happened despite the fact that the Supreme Court banned prosecutors from using their strikes on the basis of race in Batson v. Kentucky nearly 20 years ago.
The situation in Foster is not unique. Numerous studies demonstrate that prosecutors strike black jurors at significantly higher rates than white jurors, too often leaving criminal defendants facing a jury that looks nothing like their peers. For example, a 2010 study of Southern States (including South Carolina) by the Equal Justice Initiative identified counties where prosecutors excluded nearly 80% of African Americans qualified for jury service. This same study reported that no criminal defendant had won a Batson challenge in South Carolina since 1992.
Justice 360 represents inmates in South Carolina who have been sentenced to death. We are aware of at least four African American men who were sentenced to death by all-white juries, some as recently as 2006. In capital cases there are regularly only one or two African Americans seated as jurors (less than 15% of the jury) despite the fact that African Americans make up roughly 30% of South Carolina’s population.
Like the prosecution in Foster v. Chatman, solicitors in South Carolina often offer implausible “race neutral” reasons for removing black jurors. In a case we are handling now, the prosecution struck four black potential jurors. The solicitor said he struck two of them for not having prior knowledge of the case, but said he struck a third potential juror because he “knew too much” about the case. The same solicitor also accepted white jurors who knew just as much (or as little) as the African American jurors he struck.
It is worth noting that Foster only became aware of the prosecution’s explicit use of race after the State’s notes were finally disclosed nearly 20 years after Foster’s original trial. In a currently pending case, William Dickerson v. South Carolina, Solicitor Scarlett Wilson has refused to allow the inmate’s appellate attorneys to see approximately 3000 pages of documents her team produced regarding jury selection, claiming they are privileged. This kind of secrecy casts a shadow on the integrity of our criminal justice system.
Racial discrimination in jury selection is intolerable. The Foster case has potential to strengthen legal protections, but all parties must be more vigilant against unconstitutional behavior. Defense attorneys should carefully track the history of strikes by individual solicitors and vigorously challenge pretextual “race neutral” reasons. Judges and the press should hold solicitors accountable when they offer suspicious excuses like the ones given in Foster. And solicitors should be transparent and honest in their decision-making when selecting jurors in criminal cases.
Emily Paavola and Lindsey S. Vann are attorneys at Justice 360 in Columbia. Together, they represent more than 15 individuals facing death sentences in South Carolina.